Citation Nr: 1302650
Decision Date: 01/24/13 Archive Date: 01/31/13
DOCKET NO. 09-46 873 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUE
Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
R. Kessel, Counsel
INTRODUCTION
The Veteran had active air service from April 1971 to April 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.
In November 2009, the Veteran requested to have a hearing before a member of the Board in Washington, DC. No hearing was scheduled and the Veteran's representative did not reference a hearing in subsequent correspondence. In a November 2012 letter, the Board asked the Veteran to clarify whether he wanted to attend a Board hearing. In January 2013, the Veteran responded that he did not wish to appear at a hearing. Under these circumstances, the Board finds that the Veteran has been afforded his opportunity for a hearing and that his request to testify before the Board has been withdrawn. 38 C.F.R. § 20.702(e) (2012).
REMAND
In the February 2009 rating decision, the Veteran was awarded service connection for PTSD and a 30 percent rating was assigned effective May 21, 2008. He contends that a higher rating is warranted than initially assigned.
When a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991).
The most recent VA psychiatric examination was in January 2009. That report notes that the Veteran did not have a history of suicide attempts and he did not exhibit suicidal ideation on examination. Subsequently, in May 2009 and October 2009 statements, the Veteran indicated that he had tried to commit suicide on two occasions, but was saved by his wife. Additionally, a private social worker noted that the Veteran had exhibited mild suicidal ideation since August 2010. Given that the most recent VA examination to assess the Veteran's PTSD was conducted nearly four years ago and that his symptoms may have worsened, the Board finds that the claim must be remanded for a new VA examination to determine the current degree of severity of the Veteran's PTSD.
It appears that the Veteran receives regular treatment at the VA Medical Center (VAMC) in New York, New York, and its associated outpatient clinic in Staten Island, New York. Updated treatment records should be obtained in light of the remand.
Accordingly, this case is REMANDED to the RO or the Appeals Management Center in Washington, D.C., for the following actions:
1. Obtain the Veteran's more recent treatment records (since March 2009) from the New York VAMC and Staten Island outpatient clinic.
2. Arrange for the Veteran to be scheduled for a VA examination by an examiner with the sufficient expertise to ascertain the severity and manifestations of his service-connected PTSD. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner, and any indicated studies should be performed.
The RO or the AMC should ensure that the examiner provides all information required for rating purposes. In addition, the supporting rationale for all opinions expressed must be provided.
3. The RO or the AMC should undertake any other development it determines to be warranted.
4. Then, the RO or the AMC should readjudicate the claim. If the benefit sought is not granted to the Veteran's satisfaction, furnish the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the record is returned to the Board for further appellate action.
By this remand, the Board intimates no opinion as to any final outcome warranted.
No action is required of the Veteran until he is otherwise notified by VA, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).